‘Tyranny of Elected’ - SC on appointment procedure

  • 324(2): CEC/EC appt by Prez subject to Parl laws
  • CEC & Other EC Act 2023 in response to SC’s 2023 Anoop Baranwal judgement
    • Search Committee headed by CS 5
    • Selection Committee 1 name to prez
      • PM
      • Union Cabinet Minister
      • LoP

Concerns regarding appointment procedure

  • executive dominance (2:1)
  • search committee bypass
  • appt. allowed even if Selection Committee has vacancies
  • Bureaucratic monopoly (only secretary rank officers eligible)
  • status downgrade (salaries & condn. aligned with CS, not SC judge)

Suggestions

  • Goswami Committee 1990, 255th LC Report 2015: 3 member collegium w/ PM, LoP, CJI
  • National Commission to Review the Working of the Constitution 2002: panel of PM, LoP (LS&RS), Speaker+DC
  • 2nd ARC 2007: collegium w/ PM, Speaker, LoP, Law Minister, DC
  • replace minister with CJI (aligning w/ Anoop Baranwal)
  • or create genuinely independent authority
  • transparent eligibility criteria
  • advance circulation of shortlisted names

Global best practice

  • UK: recruitment of EC overseen by Speaker’s Committee on Electoral Commission
    • recruitment approved by House of Commons
  • USA: commission appt by Prez & confirmed bySenate

Removal of CEC/EC

324(5) - deliberate asymmetry - CEC enjoys judicial level removal protection; other EC don’t

CECEC
removal like SC judgeremoval by Prez on CEC recco
proved misbehaviour / incapacity + parliamentary address + 100/50 sign speaker acceptno parliamentary impeachment
each house: maj of total membership + 2/3 present & voting (quasi judicial)CEC recommendation
high insulation from executive / legislative pressurecomparatively lower insulation

2023 act retains the distinction.

Why asymmetry?

  • CEC == institutional head stronger protection
  • but excessive difference can create institutional vulnerability within commission
  • EC may refrain from disagreeing due to perception of insecurity

Reform

  • uniform removal protection for CEC + EC, preferably SC judge process
  • CEC recco as a safeguard but not sole protection
  • parliamentary process to remove EC

CEC special protection is justified because he/she is constitutional head some differentiation can preserve administrative flexibility. However, for an institution entrusted with electoral neutrality, security of tenure should attach to all decision makers.

Limitations of CEC/EC

  • appt. executive dominated
  • asymmetric removal protection
  • MCC lacks statutory force
  • weak control over political parties (funding, internal democracy)
  • money power exceeds regulatory capacity
  • criminalization of politics
  • dependence of ECI on govt machinery (no secretariat; budget not charged)
  • post election adjudication are outside ECI
  • digital / social media ecosystem (deepfake, AI gen content, micro targeting)
  • institutional transparency concern (SIR, CEC selection)

Electoral Funding

Issues

  • ADR: dominance of corporate funding (92%) parties serving business interests
  • Geographic concentration - delhi, maharashtra, gujarat
  • zero declaration trend for above 20,000 by BSP
  • electoral trusts remain major donor
  • Electoral bond: information asymmetry; privacy of donor

Reforms

  • mandatory real time disclosure
  • lower disclosure threshold (current 20k)
  • state funding
  • ceiling on party expenditure (255th LC 2015)
  • Independent auditing by panel approved by CAG
  • decouple corporate influence restore 7.5% cap of net profit on corp donations
  • grant ECI statutory power to de-register political party if it fails to submit audited accounts or violates funding norms

State funding of elections

  • govt provides financial support to political parties
  • derived from public resources
  • promotes transparency, fairness, equal opportunities; reduces corruption; strengthening political parties
  • types
    • direct
    • indirect: subsidized / free media access, tax advantage, complimentary use of public spaces, provisions for utilities, travel expenses, transport, security
  • Current measures
    • free airtime on public broadcasters for national parties during general elections & for registered state parties in state legis elections
    • national parties benefits - security, office space, utility subsidy
    • registered political parties exempt from paying income tax (Sec13A of IT Act)
  • Indrajit Gupta Committee 1998: endorsed, for level playing field
  • Law Commission 1999: state funding desirable
  • 2nd ARC 2008: partial state funding to curb illegitimate & unnecessary funding of election expenses
  • downsides
    • burden on taxpayer
    • misuse of state funds
    • risk of dependency
    • challenges in implementation

Reforms in elections

  • Indrajit Gupta Committee 1998: partial state funding to reduce role of money power
    • Law Commission 170th Report 1999 state funding desirable + strict regulation of party finances
  • Vohra Committee 1993: highlighted politician - bureaucrat - criminal nexus
    • LS 2024: 46% declared criminal cases, 31% serious
    • Lily Thomas 2013: immediate disqualification
  • regulate political party
    • finances, internal democracy etc
  • strengthen EC
    • independent appointment
    • uniform security of tenure for all EC
    • greater control over staff, finances etc
    • CFI expenses
  • strict MCC make statutory
  • tackle paid news, digital misinformation (Law Commission 255th)
  • speedy resolution of election disputes

One Nation One Election

  • support: Law Commission 170th Report 1999

+ve

  • cost reduction by eliminating separate election cycles
  • focus on long term governance
  • inc voter turnout
  • level playing field due to reduced expenses
  • efficient use of security forces
  • governance continuity, no frequent MCC imposition
  • election fatigue

-ve

  • synchronization challenge
  • federalism issues in implementation
  • impact on voter behaviour - confusing national & state issues
  • impact on regional parties - national parties will have edge
  • accountability concerns due to fixed terms

Challenges

  • overshadow regional issues
  • disproportionately benefit national parties
  • political accountability reduced
  • term of SLA - premature dissolution?
  • logistical

Kovind Committee 2023

  • Phase I: simultaneous LS+SLA
  • Phase II: panchayats w/in 100d of general election
  • single EPIC/electoral roll for all election
  • fresh elections only for remaining term
  • Union Cabinet accepted reccos in Sept 2024